Premiere Corp.

National Labor Relations Board - Board Decisions

Jun 28, 1974

212 N.L.R.B. 382 (N.L.R.B. 1974)

382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Premiere Corp . and International Union of Electrical,
Radio and Machine Workers, AFL-CIO-CLC
Premiere Corporation and International Union of Elec-
trical , Radio and Machine Workers, AFL-CIO-
CLC, Petitioner . Cases 17-CA-5398, 17-CA-5566,
and 17-RC-6991
June 28, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On November 28, 1973, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, the General Counsel
and the Charging Party filed exceptions and support-
ing briefs, and the Respondent filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent they are consistent herewith, and to adopt his
recommended Order.
1. In his Decision, the Administrative Law Judge
found that Respondent had violated Section 8(a)(1) of
the Act by threatening to close the plant if employees
voted for the Union; threatening employees with re-
prisals if they engaged in union activities; creating the
impression it was engaging in surveillance of employ-
ees' union activities; and promulgating an unlawful
rule forbidding solicitation. He dismissed other
8(a)(1) allegations and the 8(a)(3) allegations. We
agree with the dismissal of these allegations I and
adopt his findings, to which there are no exceptions,
that Respondent violated Section 8(a)(1) by the afore-
mentioned acts.
2. The Administrative Law Judge also found that
there was no meeting of the minds between the parties
as to the appropriate unit. He therefore found the
Stipulation for Certification to be a nullity, and rec-
ommended that the Board remand Case 17-RC-6991
to the Regional Director for processing ab inltlo. Be-
t Member Fanning would find that the speeches by Thompson, including
his reading of the court of appeals ' opinion in Herman Wilson Lumber Com-
pany, 355 F 2d 426 (C A 8, 1966), denying enforcement of 149 NLRB 673,
were , under the circumstances present herein , in violation of Sec 8 (a)(1), in
that they conveyed to employees the futility of seeking representation by the
Union
cause he did not make a finding as to the appropriate
unit , believing that would be a denial of due process
to Respondent , and because he did not consider the
violations found to be serious enough to warrant a
bargaining order , the Administrative Law Judge de-
nied the General Counsel 's request for such an order.
We do not agree with this resolution.
The Stipulation for Certification executed by the
parties set out the unit as "all production and mainte-
nance employees , including delivery drivers. . . . ,"
the term "delivery drivers" being a bone of conten-
tion . Respondent contends it meant specific employ-
ees who drive tractor-trailer rigs and deliver
Respondent 's products to its customers at points some
distance away . The Union contends that it was of the
opinion the "delivery drivers" included were shipping
department employees who occasionally drive a small
van in and around Arkansas City, although it was
aware of the names of the employees Respondent
wanted to include.
Although we agree with the Administrative Law
Judge that there clearly was not a meeting of the
minds relating to the "delivery drivers," we do not
believe this small variance is sufficient to warrant re-
manding the case to the Region , rather than making
the unit determination .' Nor do we agree with his
conclusion that the record herein is insufficient to
make such a determination without denying due pro-
cess to Respondent.
The record discloses that the main duty of these
truckdrivers is to deliver Respondent 's products to its
customers , most of whom are some distance from
Arkansas City. When engaged in this operation, the
drivers have no supervision save from Plant Manager
Thompson ; they are paid by the mile , are reimbursed
for expenses incurred , and comply with Interstate
Commerce Commission regulations. Two of the driv-
ers also testified , however, that they may work one-
half of their time in the plant under the supervision of
Thompson and, when doing so, they work on the
delivery dock or do any other job to which they are
assigned. When in the plant , they punch a timeclock
and are paid hourly , as are the production and main-
tenance employees.
Under the circumstances of this case , and in the
absence of a competing claim by any organization
seeking to represent only these truckdrivers , we find
that the community of interest shared by these drivers
with the production and maintenance employees is
sufficient to include them in the unit . They are hereby
included.
We now turn to the second point on which we
disagree with the Administrative Law Judge , his re-
2 Washington Coca-Cola Bottling Work, Inc. 122 NLRB 7, amending 117
NLRB 1163
212 NLRB No, 37
PREMIERE CORP. 383
fusal to issue a bargaining order. We do not agree that
the unfair labor practices found herein are insufficient
to warrant such an order. The 8(a)(1) violations found
herein are substantial, especially the threat of plant
closure conveyed by Kaiser to the employees. We
further believe that this type of threat tends to pre-
clude a fair and free election being carried on in the
near future, and that it is in the best public interest to
order Respondent to bargain collectively with the
Union, which, as shown by signed authorization
cards, represents a majority of the employees in the
unit found appropriate herein.' For the reasons stated
in Steel-Fab, Inc., supra, we do not find Respondent's
refusal to bargain as of August 21, 1972, nor its subse-
quent unilateral grant of wage increases, to be viola-
tive of Section 8(a)(5).4
In light of the findings made herein, we will order
Respondent to bargain collectively with the Union,
and we will order that the election held in Case 17-
RC-6991 be set aside and the petition dismissed.
modified, and hereby orders that Respondent , Premi-
ere Corp ., Arkansas City, Kansas, its officers , agents,
successors , and assigns , shall take the action set forth
in the said recommended Order , as modified below:
1. Insert the following as paragraph 2(b), and relet-
ter the existing paragraphs (b) and (c) as (c) and (d).
"(b) Bargain collectively with International Union
of Electrical , Radio and Machine Workers, AFL-
CIO-CLC, respecting rates of pay , wages, hours, or
other terms and conditions of employment, as the
representative of our employees in the following ap-
propriate unit:
"All production and maintenance employees, in-
cluding delivery drivers, employed by Premiere
Corporation at its Arkansas City, Kansas, facili-
ty, but excluding all office clerical employees,
professional and technical employees , guards,
and supervisors as defined in the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge, as herein
s Steel-Fab, Inc, 212 NLRB No. 25. Chairman Miller concurs in the deci-
sion to issue a bargaining order as a remedy here. On October 25, Plant
Manager Thompson had emphasized, in his speech to the assembled employ-
ees, that the plant in issue had not been located in Arkansas City because
of customer location, but rather because it felt the Arkansas City "people
were dependable-diligent-accurate--conscientious-loyal and proud."
He concluded, "You haven't let us down-we don't want you to- On the
very next day , Production Manager Kaiser , also in addressing the assembled
employees , in answer to an inquiry about future increases in the minimum
wage said he could make no comment due to the union activities in the plant,
but not to worry about it because the plant might not be there in February
anyway.
For the reasons stated in his dissent in General Stencils, Inc., 195 NLRB
1109, the Chairman regards a threat of plant closure to be a threat of econom-
ic disadvantage wholly beyond the influence of the union or the control of
employees, and thus likely to require a bargaining order remedy if the threat
is made under circumstances where it is likely to be seriously regarded and
if it is widely disseminated . The threat of Production Manager Kaiser, partic-
ularly when considered in light of the previous day's statements by Plant
Manager Thompson which strongly suggested that the location in Arkansas
City depended upon employee attitudes , appears to the Chairman to have
conveyed to employees that the threat was being made by a combination of
two persons in positions of substantial authority, and thus was indeed likely
to be seriously regarded He notes also that the threat was addressed to the
entire work force. The Chairman is therefore of the view that no mere
cease-and-desist order can effectively dispel the fear that such a threat instills
and that only a bargaining order can serve as an effective remedy.
The Chairman has set forth his rationale in some detail because he agrees
with the various courts of appeal which have repeatedly required that the
Board do more than recite a boilerplate litany when it chooses to utilize this
extraordinary remedy
4 Although Member Fanning joins in the issuance of the bargaining order
herein, he would not rely on Steel-Fab, Inc, supra, in which be dissented in
part. Rather, he would find that Respondent's refusal to bargain on and after
August 21 , 1972 , and its subsequent unilateral grant of wage increases to its
employees were violations of Sec . 8(a)(5).
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election conducted
on October 26, 1972, in Case 17-RC-6991 be set
aside, that the petition be dismissed, and that the
proceedings in Case 17-RC-6991 be vacated.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial, that we violated Federal law by threaten-
ing you, creating the impression we were spying on
you, and forbidding you to solicit for a union on
nonworking time, we hereby notify you that:
The National Labor Relations Act gives all em-
ployees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a represen-
tative of their own choosing
To act together for collective bargaining or
other aid or protection
To refrain from any or all of these things.
WE WILL NOT threaten to close the plant if you
vote for a union.
WE WILL NOT threaten you with reprisals if you
engage in union activities.
WE WILL NOT create the impression we are
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spying on your union activities.
WE WILL rescind the no-solicitation rule we
promulgated in August 1972 and WE WILL NOT
promulgate any rule in the future which restricts
in any way your right properly to solicit for a
union on our property when you are not on work-
ing time.
WE WILL bargain collectively with Internation-
al Union of Electrical , Radio and Machine
Workers, AFL-CIO-CLC, respecting rates of
pay, wages , hours, or other terms and conditions
of employment , as the representative of our em-
ployees in the following appropriate unit:
All production and maintenance employees,
including delivery drivers, employed by Premi-
ere Corporation at its Arkansas City, Kansas,
facility, but excluding all office clerical em-
ployees, professional and technical employees,
guards, and supervisors as defined in the Act.
All our employees are free , if they choose , to join
International Union of Electrical , Radio and Ma-
chine Workers , AFL-CIO-CLC, or any other labor
organization.
PREMIERE CORP
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 616 Two Gateway Center, Kansas
City, Kansas 64101, Telephone 816-374-4518.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge: The
petition in Case 17-RC-6991 was filed on August 25, 1972.1
A stipulation for certification upon consent election was
approved by the Regional Director on September 20. The
election was held on October 26. The results were 22 for
representation by Petitioner, 21 against, and 8 challenges.
1 Dates are 1972 unless otherwise specified
Petitioner filed objections on November 2.
The charge in Case 17-CA-5398 was filed on November
6 and amended on November 24. The complaint was issued
on January 4, 1973, and amended on February 2, 1973.
Cases 17-RC-6991 and 17-CA-5398 were consolidated for
hearing on January 17, 1973.
The first phase of the hearing was held on February 21
and 22, 1973, in Arkansas City, Kansas. It was recessed at
that time to give Respondent an opportunity to subpena the
Board agent who negotiated the unit agreed to by the parties
as memorialized in the stipulation for certification in Case
17-RC-6991. When the General Counsel refused to permit
the Board agent to testify, pursuant to Section 102.118 of
the National Labor Relations 'Board's Rules and Regula-
tions, Series 8, as amended, the hearing was resumed bnefly
in Kansas City, Kansas, on March 29, 1973, in order to
create a record on which Respondent could seek subpena
enforcement in the United States District Court for the
District of Kansas. The Court dismissed Respondent's peti-
tion for lack of jurisdiction on May 23, 1973.
The charge in Case 17-CA-5566 was filed on March 26,
1973, and amended on May 10, 1973. The complaint was
issued on May 17, 1973. I granted the General Counsel's
motion to consolidate Case 17-CA-5566 with Cases 17-
RC-6991 and 17-CA-5398 on May 21, 1973. The third
phase of the hearing was held on August 7, 1973, in Arkan-
sas City, Kansas.
In addition to various allegations of independent viola-
tions of Section 8(a)(1) of the National Labor Relations Act,
as amended, the complaints allege violations of Section
8(a)(3) in that Respondent discriminatorily discharged 2
employees on August 16 and discriminatorily laid off 18
employees on August 17, and violation of Section 8(a)(5) in
that Respondent refused to recognize and bargain with the
Charging Party on and after August 21, although under a
legal duty to do so (i.e., a Gissel-type 2 refusal to bargain),
and unilaterally raised wages on two occasions in early
1973. For the reasons set forth below, I find that Respond-
ent, while guilty of some independent violations of Section
8(a)(1), was not discriminatorily motivated in either dis-
charges or layoffs and has never been under a duty to bar-
gain because a ruling in this proceeding that the unit in
which the General Counsel seeks a bargaining order is ap-
propriate would be a denial of due process to Respondent.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the excellent briefs filed by counsel for both the General
Counsel and Respondent, I make the following:
FINDINGS OF FACT
I JURISDICTION
Respondent , an Ohio corporation , is engaged at Arkansas
City, Kansas, in the manufacture of windows for mobile
homes and recreational vehicles. It annually ships products
valued in excess of $50 ,000 from its Kansas plant directly
to customers located outside the State of Kansas and re-
ceives materials valued in excess of $50 ,000 at that plant
2 N L R B v Gissel Packing Co, Inc, 395 U S 575
PREMIERE CORP. 385
directly from suppliers located outside the State of Kansas.
II THE RC CASE AND THE UNFAIR LABOR PRACTICES
A. The Election and the Duty To Bargain
1. Facts
The Charging Party petitioned for an election in a unit of
Respondent 's production and maintenance employees, ex-
cluding office clericals, supervisors , professionals , and tech-
nicals. The Board agent who handled the case was
R. Anthony Murphy. He negotiated on the telephone with
Ed Gaskill, organizer for the Charging Party, on the one
hand, and J. Michael Smith, attorney for Respondent, on
the other . Gaskill and Smith never met face to face during
the working out of the agreement to a consent election
which was reduced to writing in the stipulation for certifica-
tion. (Gaskill went to Smith's office on September 18 to
execute the already -drafted stipulation for certification.
There was no discussion at that time of the terms of the
agreement.) When Murphy queried Smith about the possi-
bility of a consent election , Smith said Respondent would
agree if "drivers" (it is impossible to determine from this
record exactly what word or phrase Smith used when speak-
ing to Murphy; neither Murphy nor Smith testified) could
be included in the unit. Murphy relayed Smith's position to
Gaskill. In the dickering which followed, Smith informed
Murphy that the employees he meant by whatever word or
phrase he had used were Dale Hutson and Homer LaBrue.
Murphy relayed this information to Gaskill. Ultimately,
agreement was reached for a consent election in a unit of:
All production and maintenance employees, includ-
ing delivery drivers, employed by Premiere Corpora-
tion at its Arkansas City, Kansas facility but
EXCLUDING all office clerical employees , profes-
sional and technical employees , guards and supervisors
as defined in the act.
This is the unit alleged as appropriate for bargaining in each
of the complaints in this proceeding and the unit for which
the General Counsel seeks a bargaining order against Re-
spondent.
Hutson's, LaBrue's, and Jim Anstine 's principal duty is
driving Respondent 's tractor-trailers in delivering products
to customers located as far away from Arkansas City, Kan-
sas, as Duluth, Minnesota. (Anstine was hired around the
time the consent election agreement was being worked out.
Apparently Smith was unaware of this addition to the staff
when he spoke to Murphy, for Gaskill testified Murphy only
relayed the names of Hutson and LaBrue to him .) They also
make deliveries to Oklahoma , Texas, Michigan , and Ohio.
They are, in a phrase, over-the-road truckdrivers.
At the preelection conference just before the election on
October 26, Gaskill raised an objection for the first time to
the inclusion of over-the-road truckdrivers. At his instruc-
tions, the Charging Party's observer challenged Hutson, La-
Brue, and Anstine when they came to vote.
It is the General Counsel 's position that the unit alleged
in the complaints is appropriate whether it is held to include
or exclude over-the-road truckdrivers. It is the Charging
Party's position that a unit which includes over-the-road
truckdrivers is inappropriate.
2. Analysis and conclusions
The first impediment to resolving the knotty unit issue
posed in this proceeding is the incompleteness of the record.
The only witness, through no fault of Respondent, to the
events leading up to the unit language agreed to was Gaskill.
His version was that Murphy told him Smith wanted to
include "in-town pickup and delivery drivers;" he checked
with his supporters, discovered that shipping department
employees occasionally drove a small truck in and around
Arkansas City, and concluded those were the employees
Smith wanted to include in the unit. There is no conflict in
the record as to what Murphy and Gaskill said to each
other. Therefore, although I have a little trouble swallowing
his explanation that he never inquired about the possibility
Smith might be referring to something other than shipping
department employees who drove the bobtail truck on occa-
sion, even though he had the names of Hutson and LaBrue
and saw Respondent 's tractor-trailer ngs on its parking lot
before he signed the stipulation for certification, and his
lack of an explanation of how the "in-town pickup and
delivery drivers" of Murphy's conversation with him be-
came the stipulation' for certification's simple "delivery
drivers," a succinct description of Hutson's, LaBrue's, and
Anstine's job, I do not discredit Gaskill. Instead, I find there
was a total failure of communication between Gaskill and
Smith as to the meaning of including "delivery drivers" in
the unit they agreed to . Smith thought he was including
over-the-road truckdrivers. Gaskill, if he thought in those
terms at all, thought he was excluding them.
The second impediment has to do with whether the ques-
tion of including or excluding over-the-road truckdrivers
can or should be resolved on the basis of this record. There
is some evidence bearing on their community of interest or
lack thereof with in-plant employees. It is clear that deliver-
ing the product to distant points is their basic job. When
engaged in that activity they display all the usual character-
istics of over-the-road truckdrivers. They are paid by the
mile, reimbursed for their expenses, and comply with Inter-
state Commerce Commission regulations. While the esti-
mates of the various witnesses differ, there seems to be no
serious dispute that they are away from the plant more than
half the time. When they are not on the road, they punch
the timeclock, are paid by the hour, and perform some
duties around the loading dock. The extent to which they
perform in-plant work is a matter of some disagreement
among the witnesses. However, I do not reach the question
of whether the delivery drivers have a sufficient community
of interest with in-plant employees to justify their inclusion
in the unit. In my opinion , the record made as to this issue
falls far short of the sort of record which would be made at
a representation case hearing where unit inclusions and ex-
clusions were the central issue litigated . More importantly,
I think it is a denial of due process to force Respondent to
litigate this issue in the context of a refusal-to-bargain pro-
ceeding after it relied in good faith on representation pro-
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceedings which resolved the issue in its favor.
Moreover, if the record is deemed a complete and fair
litigation and the unit issue is resolved in this proceeding,
the unit description must be handled in one of two ways.
Both pose due process dilemmas. The threshold question is
whether "delivery drivers" refers to over-the-road truckdri-
vers. If the conclusion is that it does, then the community
of interest issue must be resolved. If it is resolved on the
basis that the over-the-road truckdrivers have sufficient
community of interest to be included in the unit, then the
General Counsel is seeking a bargaining order in a unit
which the Charging Party, the beneficiary of that order,
considers inappropriate and does not seek to represent. If
it is resolved on the basis that they do not, then the unit
language should be rewritten to include "delivery drivers"
or "over-the-road truckdnvers" among the specific exclu-
sions. Once again, Respondent would be denied due process
since the unit issue would be resolved against it in this
proceeding despite its good-faith reliance on representation
case proceedings in which the issue was resolved in its favor.
The issue of whether over-the-road truckdrivers should
be included in the unit is one about which reasonable men
can differ, even on the basis of the incomplete record here.
Respondent says they should. The Charging Party says they
should not. There is no evidence that during the processing
of Case 17-RC-6991, Respondent tried to pull the wool
over the Charging Party's eyes. "Delivery drivers," whether
modified or unmodified in the messages which passed back
and forth between Smith and Gaskill through Murphy,
clearly includes, even if it is not limited to, employees who
deliver Respondent's products to its customers. Smith
frankly and forthrightly told Gaskill that Hutson and La-
Brue were the specific employees he was seeking to include
in the unit by taking the position he took. There is no basis
for discrediting Gaskill's explanation that he missed the
point of Smith's position when he agreed to include "deliv-
ery drivers" and finding that he was, therefore, guilty of bad
faith when he changed his position on Hutson, LaBrue, and,
incidentally, Anstine between execution of the stipulation
for certification and the election. The controlling fact, how-
ever, is that Gaskill, not Smith, is the one who created the
unit issue in this proceeding by changing "delivery drivers"
from a clear to an ambiguous phrase. Fairness requires that
the Charging Party, not Respondent, bear the burden of
whatever effects flow from that fact.
With respect to Case 17-RC-6991, the effect is to render
moot the issues before me. As already indicated, three of the
eight challenges before me were the Charging Party's to the
ballots of Hutson, LaBrue, and Anstine. The other 5 are to
the ballots cast by I of the 2 employees discharged on
August 16 and 4 of the 18 employees laid off on August 17
who comprise the subject of the section which follows. The
objections referred to me for hearing are also embraced in
or related to the 8(a)(3) and (1) allegations in this proceed-
ing. Insofar as Case 17-RC-6991 is concerned, I do not
reach either challenges or objections. I find that the stipula-
tion for certification approved by the Regional Director on
September 20 in Case 17-RC-6991 and all the proceedings
in that case which followed are a nullity because the minds
of the parties to the stipulation for certification did not
meet. I recommend, therefore, that the Board remand Case
l7-RC-6991 to the Regional Director for processing ab
initro in the normal manner by issuance of a notice of hear-
ing.
With respect to the refusal-to-bargain aspects of Cases
17-CA-5398 and 5566, the effect is to preclude any finding
of a violation of Section 8(a)(5). As already indicated, the
General Counsel contends that Respondent's duty to bar-
gain arises because of the Gissel principle. As is more fully
developed in the section which follows, union activities be-
gan among Respondent's employees on August 15. Gaskill,
the Charging Party's organizer who ran its campaign, ap-
peared on the scene on August 19. As of August 21, the
Charging Party had in its possession valid authorization
cards from a majority of unit employees, no matter how the
size of the unit is computed. (It had 37 of 53 employees
actually employed on August 21 if Dale Hutson and Homer
LaBrue are included, 37 of 51 if they are excluded. It had
49 of 71 or 69, as the case may be, if the 18 employees laid
off on August 17 are included. It had 51 of 73, or 71, if the
two employees discharged on August 16 are further includ-
ed.) On August 21, the Charging Party demanded recogni-
tion in a production and maintenance unit without further
specifying inclusions or exclusions. On August 23, Re-
spondent declined to recognize the Charging Party. On Jan-
uary 8, 1973, Respondent changed its wage structure by
creating a new category of employees with 1 year's service
and giving employees in that category a raise of 25 cents an
hour. Three employees actually received a 25-cent raise as
a result of this action. On May 7, 1973, Respondent granted
an across-the-board raise of 10 cents an hour to all its em-
ployees. In addition, it created another category of employ-
ees with 18 months' service and gave employees in that
category an additional raise of 10 cents an hour. Two em-
ployees received a 20-cent raise as a result of the across-the-
board raise and this change in the pay schedule. Respon-
dent took all these actions with respect to wages without
notifying or consulting the Charging Party.
Case 17-CA-5566, added to the proceeding during the
long hiatus in the hearing, is predicated on a unilateral
change in wages theory. It, like the refusal-to-bargain alle-
gation in Case 17-CA-5398, is bottomed on a duty to bar-
gain arising from the Charging Party's demonstration of
majority in an appropriate unit, its demand for recognition
in that unit, Respondent's refusal to recognize, and conduct
of Respondent which rendered the Charging Party's author-
ization cards a better index of employee desire to be repre-
sented by the Charging Party than a secret ballot election.
Therefore, if the General Counsel does not prevail on his
Gissel theory, no finding of a refusal to bargain is possible
in either of the two complaint cases.
The Charging Party had a majority no matter which way
the unit issue is resolved. In the sections which follow, I find
that Respondent committed some, although not all, of the
8(a)(1) and (3) violations alleged. If I were to reach the issue,
I would find that the unfair labor practices found are not
sufficiently serious to justify a bargaining order rather than
an election under the criteria laid down by the Supreme
Court in Gissel. However, I do not base my 8(a)(5) findings
on that conclusion. Rather, I find that the Gissel principle
is not called into play here because the Charging Party may
have demanded recognition in an inappropriate unit and,
PREMIERE CORP. 387
for the reasons already stated, it would be a denial of due
process to Respondent to resolve that issue in this proceed-
ing. Therefore, Respondent has not violated Section 8(a)(5)
of the Act.
B. The Discharges and the Layoff
1. Facts
Respondent's Arkansas City plant is one of three. The
other two are in Dayton, Ohio, and Cassopolis, Michigan.
The Arkansas City plant opened in the summer of 1971. It
produced its first windows in December 1971. By May 1972,
it had approximately 35 employees. At that time, the Cas-
sopolis plant entered into a contract so large that it was
forced to expand its facilities to meet it. Pending completion
of those facilities , Respondent ordered the Arkansas City
plant to increase its production drastically and ship win-
dows to the Cassopolis plant. A goal of 2,500 windows per
week for Cassopolis was set . In order to meet this require-
ment, Roy Thompson, manager of the Arkansas City plant,
began expanding his work force in mid-May. By mid-Au-
gust, when the Charging Party undertook to organize the
Arkansas City employees, they numbered approximately
70. Near the end of this 3-month period, the number of
windows shipped from Arkansas City to Cassopolis ap-
proached but did not quite reach 2,500 per week.
Robin Palmer went to work for Respondent in late Feb-
ruary. Sometime in July, she made a derogatory remark to
Sharon Ames, the secretary-receptionist, when Miss Ames
came into the factory area. Miss Ames reported her to Dick
Kaiser , the production manager . Kaiser called Miss Palmer
into the office, reprimanded her, and warned her that if it
happened again she would be discharged.
Sue Bailey and Josephine Badley are daughter and moth-
er. Both work in the plant as group leaders. Sometime prior
to August (the record is unclear on just when Miss Palmer
and Mrs. Bailey fell out; Miss Palmer claimed they patched
up their difference a week before her discharge; her admis-
sion that she called Mrs. Bailey and her mother "kiss ass"
just prior to her discharge belies her conclusion) Robin
Palmer and Sue Bailey quarreled over Mrs. Bailey's exhus-
band. On Monday, August 14, and again on Tuesday, Au-
gust 15, Miss Palmer encountered Mrs. Bailey and Mrs.
Badley at lunchtime in a hamburger stand near the plant.
On both occasions, she called them "kiss ass" as she walked
past them and out the door. On Tuesday afternoon, Mrs.
Badley reported what had happened both days to Foreman
Gene Silvers. Silvers told Thompson on Wednesday, August
16.
Steve Womack went to work for Respondent in April.
Just prior to Monday, August 14, he was group leader in the
shipping department . The plant worked overtime the week-
end of August 12 and 13 . Womack went home sick at noon
on Sunday, August 13, without notifying anyone and with-
out arranging with either of the two men under him to
assume the responsibility of seeing that the truck they were
loading was finished before they went home. As a result, the
truck, which was supposed to be ready to leave the plant
early Monday morning , was still only partially loaded at
that time. Womack remained off sick on Monday. Kaiser,
angered at his dereliction , demoted him from group leader
and promoted John Lowe to group leader in his stead. All
that Womack lost by the demotion was the title and the
responsibility. His pay was not cut.
A fellow employee telephone Womack while he was at
home on Monday and informed him of his demotion and
Lowe's promotion. When he returned to work on Tuesday,
August 15, Kaiser informed him officially. In midmorning,
when Womack had occasion to be in the office on business,
he told Sharon Ames, in the presence of Suzanne Young, the
purchasing agent, that he was not going to work under
Lowe. (I credit Ames and Young over Womack as to this
incident.) At the end of the day, Miss Ames told Thompson
what Womack had said.
Sometime around noon on Tuesday, August 15, Robin
Palmer began asking employees who were interested in get-
ting a union into the plant to sign a piece of paper. (Whether
union activity began before or after lunch is not clear. Miss
Palmer was unsure. Womack did not get involved until after
lunch . In any event, it is clear that Miss Palmer 's insulting
Mrs. Bailey and Mrs. Badley did not grow out of any dis-
pute among them over Miss Palmer's union activities, for
Miss Palmer did not indicate that she approached either of
them either before or after lunch that day.) After lunch,
Womack obtained some signatures for her by passing the
paper around the shipping area. After about 5 minutes, he
returned the paper to Miss Palmer.
Thompson received a telephone call from Respondent's
president on the morning of Wednesday, August 16. (Ap-
parently Respondent's corporate headquarters is located in
Dayton.) The president informed him the Cassopolis plant
was ready to take over its own production and ordered him
to stop producing windows for Cassopolis immediately.
Thompson decided to reduce his work force.
At the end of the day, Thompson summoned Robin
Palmer and Steve Womack to his office individually and
discharged them. He told each that the staff was going to
be cut- back by 20 persons and others were going to be laid
off, but in their cases they were being permanently dis-
charged. He told Miss Palmer she was discharged for caus-
ing friction with Sharon Ames and Sue Bailey. He told
Womack he was discharged for the incident which had led
to his demotion and his subsequent statement that he would
not work under Lowe.
At the end of the day on Thursday, August 17, Thompson
assembled all the employees . He told them 18 persons were
being laid off . He said he hoped to be able to recall most
of them in the near future. He urged them to look for other
jobs. The 18 least senior employees were laid off as of the
end of that day. Those at the bottom of the list had started
work only that week . Some have since been recalled. Those
laid off and, where applicable the date on which they were
recalled , were Linda Blakey, Lenora Blevins, Margaret
Brock, Shirley Brock, William Carson (September 20, did
not return), Gerald Harader (August 28), Ranney LeClair
(August 28, did not return), Connie Moore (August 31),
Norma Neal, Stanley Nellis, Marjorie Parmenter (August
28), Peggy Paton (August 28),, Rodney Piatt (August 28),
Peggy Roberts, Roxie Stone, Betsy Traister, Linda Whyde,
and Mary Whyde.
The Charging Party represents employees in a General
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Electric plant in the Arkansas City area. Miss Palmer con-
tacted a friend who is a steward at the General Electric
plant. (Whether before or after her discharge is unclear in
the record .) He put her in touch with another of the officials
of the union at General Electric . She met with union men
from General Electric at their hall on Thursday evening,
August 17. As a result of that meeting , word reached the
Charging Party that Respondent 's employees were interest-
ed in representation . Consequently, Ed Gaskill came to Ar-
kansas City on Saturday, August 19. He met with Miss
Palmer and the men from General Electric in the morning.
In the afternoon he conducted a meeting for Respondent's
employees at the union hall. Twenty-one employees attend-
ed. At the end of the meeting , volunteers visited the homes
of other employees to solicit authorization cards . These ef-
forts continued on Sunday, August 20. By Monday morn-
ing, a majority of Respondent 's production and
maintenance employees had signed cards authorizing the
Charging Party to represent them.
Gaskill and a group of employees handbilled the plant
early Monday, August 21. When Thompson arrived at the
plant , Gaskill approached him, stated he represented a ma-
jority of the employees , and demanded recognition . Thomp-
son refused to talk to him. Later that afternoon , Gaskill sent
a telegram to the plant which read:
This will verify unions verbal request at 6:45 AM today
and repeat demand of recognition of IUE AFL-CIO
Again the IUE AFL-CIO hereby offers to prove that
the union represents a majority of all production and
maintenance employes at the companys Arkansas Ci-
tys plant . The union is willing to submit properly
signed authorization cards [to] an impartial third party
for a check of this majority status against the companys
listing of production and maintenance employees.
On August 23, Thompson replied by letter:
We do not recognize the IUE AFL-CIO as repre-
senting our employees.
2. Analysis and conclusions
The 8(a)(3) issue posed in this proceeding is the always
difficult one of motive . The General Counsel contends Rob-
in Palmer and Steve Womack were discharged and the 18
other employees were laid off because of the union activity
which began in the Arkansas City plant on August 15. Re-
spondent contends the decision to reduce the staff by 20 was
based solely on economic necessity and Palmer and Wom-
ack were included in the reduction by being discharged for
causes unrelated to their particular union activities. There
is no dispute that the person who made Respondent's deci-
sion to reduce the staff and include Palmer and Womack in
the reduction was Roy Thompson , the plant manager. Thus,
the question comes down to what was in Thompson's mind.
The General Counsel has presented a strong case . First,
there is the animus against organization displayed by Re-
spondent in the activity which forms the subject of the
following section . While all of this activity took place after
August 17, the attitude toward unionization displayed by
Thompson in his speeches to the employees must go into the
scale on the General Counsel' s side . Next , there is the timing
of the events , especially the discharges . Palmer , the initiator
of the attempt to organize the plant , and Womack , the only
employee who gave her any support other than signing a
piece of paper on the day she began her efforts , were dis-
charged on the very next day. This is the strongest point in
the General Counsel 's case . The causes for which Respond-
ent says it discharged Palmer and Womack must pass the
strongest scrutiny if timing and animus are not to carry the
day. Third , there is the fact the record does contain some
evidence on which to base a conclusion that Respondent,
the corporate entity, had knowledge of Palmer's and
Womack's August 15 activities on that day and infer that
Thompson, the person, knew. The proof of company knowl-
edge is less strong.
Laying aside for the moment the General Counsel 's reli-
ance on the small plant doctrine , the only direct evidence
of company knowledge of union activities prior to the Au-
gust 21 handbilling is the following uncontradicted testimo-
ny of John Lowe:
Q. (By Mr. Hurley) Let me call your attention to
August 15, a Tuesday , about 10 : 30 a.m . in the morning,
did you have a brief conversation with Dick Kaiser?
A. Yes, I did.
Q. Was anyone else present?
A. No.
Q. Where did it take place?
A. Up on the loading dock.
Q. What was said in this conversation?
A. He called me aside and said that he had a ques-
tion that he would like to ask me and asked me if I
would have lunch with him.
Q. Is that all he said at that time?
A. Yes.
Q. Subsequently , at noon , did you have lunch with
Kaiser?
A. Yes, I did.
Q. Where did you go?
A. Went to the Sunbeam Cafe.
Q. Was anyone else at lunch with you besides the
two of you?
A. Stan Holm and Gene Silvers were with us to start
with, but we dropped them off at the 166 Grill.
Q. So it was dust you and Kaiser at the other cafe?
A. Yes, it was.
Q. What, if anything, did Kaiser say to you at that
time?
A. Well, he asked me how long Steve Womack and
I had been friends , and I told him several years, and he
asked me if Steve had any personal problems or beefs
down there, and I said that not that I knew of, and that
kind of dropped it about him. He asked me if I knew
anything around the plant about a union being started,
and I told him there wasn't, not to my knowledge, and
that was about the end of the conversation.
Q. Were you eating while he was chatting with you?
A. We started out, he started talking, and I ordered
PREMIERE CORP.
during the conversation; and when it was finished, I
went ahead and ate.
Q. Anything else that you can recall of this noon-
time conversation concerning the union or Womack?
A. No, that's it.
Q. Had you ever been invited out to lunch by Mr.
Kaiser, or say Mr. Thompson, before that time?
A. No, sir.
Q. Have you ever been since?
A. Nope.
Q. Who paid for the lunch?
A. Mr. Kaiser.
Kaiser made his lunch date with Lowe well before Miss
Palmer started collecting signatures . Presumably the ques-
tion he wanted to ask Lowe had to do with Lowe's personal
relationship with Womack for that is the first subject he
raised with Lowe at lunch. This is a natural enough se-
quence since Womack had just returned to work that morn-
ing after being deposed as group leader in favor of Lowe
and was displaying resentment at the change. After asking
Lowe about Womack, Kaiser switched to a query about
union activity. Insofar as the sequence of events in making
the date for lunch was followed by Robin Palmer' s starting
to collect signatures which was followed by Kaiser and
Lowe going to lunch is concerned, there is no insuperable
obstacle, for it is quite possible that something came to
Kaiser's attention after he spoke to Lowe on the dock at
10:30 a.m. and before they went to lunch at noon. The
significant thing about this conversation is that Kaiser could
not have had any knowledge of Womack's role in circulat-
ing Miss Palmer's piece of paper at that time for that had
not yet happened. The fact that Kaiser first talked to Lowe
about Womack and then changed the subject to possible
union activity in the plant without connecting the two shows
Kaiser had no suspicion of Womack. While this testimony
is sufficient to support a finding that Respondent had
knowledge of union activity in the plant prior to
Thompson's decision to discharge Palmer and Womack, it
falls somewhat short of being clear and convincing proof
that Thompson knew specifically that Palmer and Womack
were the leaders in getting the organizing campaign started.
However, when it is coupled with the small plant doctrine
there is enough to preclude rejecting the General Counsel's
contentions on the ground that he has not proved company
knowledge.
The strongest point in Respondent's case is also the tim-
ing of the events. The General Counsel does not contend
that there was no economic justification for a reduction in
Respondent's work force. The fact that Thompson was
abruptly ordered to curtail production drastically on the
morning of August 16 when he received a call from
Respondent's president is not disputed. Neither is the fact
that the president's order grew out of completion of the
expansion program at Respondent's Cassopolis plant, thus
abruptly ending the necessity for part of Arkansas City's
production. The General Counsel does not contend any or
all 18 persons were discriminatorily selected for inclusion in
an otherwise economically motivated layoff because of their
union activities or sympathies. The undisputed fact that the
389
18 least senior employees were laid off makes any such
position untenable. Rather, the General Counsel relies, in
contending that the layoff was discriminatorily motivated,
on the alternative arguments that attrition would have re-
duced the staff to an acceptable level in a short time without
a layoff or, if it would not, Respondent at least accelerated
the layoff because it let the employees go in the middle of
the workweek. Thus, whether there has been any violation
of Section 8(a)(3) turns on whether the timing of the events
justifies the conclusion that Thompson was not discrimina-
torily motivated when he discharged Palmer and Womack
and laid off the other 18.
Thompson's stated reason for discharging Miss Palmer
was that she had created friction with Sharon Ames and Sue
Bailey. She had, in fact, been warned that she would be
discharged after a run-in with Miss Ames if it ever happened
again . She did, in fact, have run-ins with Mrs. Bailey on
August 14 and 15. The Bailey incidents came to
Thompson's attention on August 16 and he discharged
Palmer that day. Womack did, in fact, cause a serious prob-
lem for Respondent by going home without permission on
August 13. Whether Respondent should have forgiven him
because he was sick at the time is irrelevant to the motive
issue . When he was penalized on his return to work, he did,
in fact, demonstrate an uncooperative attitude. Thompson
learned of that attitude late on August 15. He discharged
Womack the next day. Before either Palmer or Womack
was discharged, Thompson learned that he had to reduce
his staff. No significant amount of time elapsed between
Thompson's learning of Miss Palmer's second offense and
Womack's attitude to justify a conclusion that Respondent
had condoned what it viewed as their misconduct and then
revived it to use as a pretext to mask a discriminatory mo-
tive. It is logical and credible that, faced with the necessity
of reducing his staff, Thompson decided to get rid of Palmer
and Womack as part of the larger cutdown. The words he
admittedly said to Palmer and Womack when he discharged
them fit this scenario exactly. There is no evidence, such as
disparate treatment of Palmer and Womack when measured
against the treatment accorded other employees who had
engaged in similar misconduct, to justify the inference that
Thompson was really motivated, in whole or in part, by
resentment of their role in starting an organizing campaign
in the plant the day before. The misconduct Palmer and
Womack were guilty of was not so trivial that discharges
because of it exceeded the limits of credulity, thus providing
a different basis for the same inference. While the
Respondent's side of the scale does not dip very far below
the horizontal, I find the General Counsel has not estab-
lished by a preponderance of the evidence that Thompson
was discriminatorily motivated when he discharged Palmer
and Womack on August 16. As to the layoff, the balance is
not even close . Divorced from the discharges of Palmer and
Womack, the evidence of a discriminatory motive for hav-
ing a layoff is so light when weighed against the evidence
as to the economic necessity for it, it will not even support
the General Counsel's minimum contention that Respond-
ent should have waited until the end of the workweek on
Friday afternoon rather than laying off on Thursday. I find,
therefore, Respondent did not violate Section 8(a)(3) and
(1) of the Act when it discharged Robin Palmer and Steve
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Womack on August 16 and laid off 18 other employees on
August 17.
C. The Interference, Restraint, and Coercion
1. Roy Thompson
Ed Gaskill demanded recognition from Roy Thompson
in front of the plant shortly before 7 a.m. on August 21.
After their exchange , Thompson went immediately to his
office and telephoned a friend who is general manager of
another company in Arkansas City. Thompson called his
friend for advice because Thompson was inexperienced in
union matters and he knew that his friend had recently gone
through a similar experience . The friend advised Thompson
immediately to "declare himself ," i.e., state his views oppos-
ing unionization of the plant, and get a lawyer . The friend
sent Thompson a copy of a speech prepared by the friend's
labor lawyer which he had used to "declare himself" at his
plant . Thompson called his personal lawyer and was ad-
vised to retain Rock & Smith , the firm of labor specialists
who represented Respondent in this proceeding . Thompson
made a few minor changes required to make his friend's
speech refer to Respondent and not to the friend 's company
and read it to the assembled employees shortly after 7 a in.
on August 21. Thereafter, on September I and October 25,
Thompson read to assembled employees speeches prepared
for him by Rock & Smith.
Allegations that Respondent , in the person of Thompson,
violated Section 8(a)(1) of the Act by threatening to close
the plant and/or turn it into a warehouse , threatening to
refuse to bargain with the Charging Party, and instructing
employees to use its newly installed suggestion box rather
than support the Charging Party are based on what Thomp-
son is supposed to have said on these occasions. Various
employees were called by the General Counsel to testify as
to their hazy and confused recollections of the speeches.
There was no serious dispute that Thompson did, in fact,
read something on each occasion. However , the General
Counsel contended, and his witnesses testified , that Thomp-
son expanded on and departed from his prepared text.
Thompson denied that he did so. Thompson did not strike
me as being smart enough to retain competent specialists in
the field of labor law to advise him, yet dumb enough to fail
to follow their advice . Therefore , I credit Thompson over
the General Counsel's witnesses as to what he said on each
occasion . I find the words he actually spoke are the words
contained in the three prepared texts which are in evidence
General Counsel 's witnesses said that Thompson 's threat
to close the plant or turn it into a warehouse was couched
in terms of operating in Ponca City, Oklahoma, rather than
Arkansas City. The only reference to Ponca City is found
in the October 25 speech . At that time and on that subject,
Thompson said:
Keep the background of this company in mind when
you vote. Premiere located in Arkansas City because of
people . We had a chance to locate in Ponca City where
our overhead would have been lower and we would
have had a larger building . We would have also had a
larger labor pool to draw from.
But, we felt that you, the people of,the Ark City area,
were the kind of workers we wanted. And, up to now
you have been dust what we want. This company has
never tried to steal its labor. We pay prevailing rates in
this industry. We felt that a good guideline to follow
was the Michigan contract. The union there feels it is
a fair industry contract. So, we have followed the lead
established in Michigan. And, you have seen your wag-
es progress as you became more and more valuable to
us.
You know we didn't come here because of customer
location. Our one local customer has only recently
started buying from us-and we've seen its order cut
as their production was curtailed. You know where our
customers are-Minnesota where the Michigan plant
is closer-Texas-Oklahoma and eastern Kansas. We
felt that the people here were dependable-diligent-
accurate-conscientious-loyal and proud. We felt
and still feel-that by treating you right-you would
treat us right-this is, give us a dollar's work for a
dollar's pay. You haven't let us down-we don't want
you to!!
There is no threat , either expressed or implied , to close the
Arkansas City plant or turn it into a warehouse in these
words. I find , therefore , that Respondent in the person of
Thompson, did not violate Section 8(a)(1) of the Act by
threatening to close the plant and/or turn it into a ware-
house.
As to the allegation that Respondent threatened to refuse
to bargain with the Charging Party, the thrust of the Gener-
al Counsel 's argument is that his witnesses should be cred-
ited over Thompson as to what Thompson actually said.
However, his brief continues:
A finding that Thompson conveyed to the employees
the futility of selecting the Union for collective bar-
gaining and that he threatened them with plant closure
and other reprisals does not necessarily depend upon
a finding that these threats were made in haec verba.
Even taking Thompson's speeches from the prepared
texts alone , there would appear to be reasonable
grounds for finding such threats implied from the tenor
of his entire speech given on October 25 His constant
and persistent effort, in all three speeches, to impress upon
the employees the futility of bargaining and the inevitabil-
ity of a strike as the necessary consequence of a union
victory in the election violated Section 8(a)(1). Yazoo Val-
ley Electric Power Association, 163 NLRB 777; H A.
Kuhle Company, 205 NLRB No. 21, slip op. p. 41. [Em-
phasis supplied ]
As the General Counsel suggests, Respondent adopted
the "you got trouble in Arkansas City" theme in its preelec-
tion campaign. The speech which Thompson borrowed
from his friend and read to the employees on the morning
of August 21 was relatively innocuous. The two he read on
September I and October 25 were much more strongly
worded. Both ring changes on the message that strikes are
PREMIERE CORP. 391
,nevitable if the employees select the Charging Party as their
bargaining representative and strikes mean lost jobs. Inso-
far as threats to refuse to bargain, the precise allegation of
the complaints I am here concerned with, are expressed or
implied, they are epitomized by this excerpt from the speech
of September 1:
Speaking of the law-our attorneys showed me a
recent ruling from the United States Circuit Court of
Appeals in St. Louis-
The court upheld the right of an employer to tell his
employees the truth-and what he said states my inten-
tions exactly-and I quote:
I do not want a union in this plant. I will fight the
union in every legal way possible. If the union wins, all
it wins is the right to bargain. . . . the right to bargain
.... no more.
Do you realize that the only way the union can try
to force this company to do anything that it is unwilling
to do would be to pull you out on strike? If the union
pulls an economic strike you placeyourjob on the line.
You can be permanently replaced, as we all can. You
can lose. your job. An economic strike could cause the
company to lose business. This has happened and this
might cause us to shut down the plant. If so, you would
be without a job. So would I.
This union is going to find me the most disagreeable
person they ever dealt with when I sit down to bargain.
That much I promise you. I told you last week that I
was going to fight this union in every legal way possible
.. and I mean it.
In dealing with the union I will deal hard and cold.
I'll deal at arms length with it, but I'll sure deal tough.
Do you know, and if you don't know you should
know before you vote, that I am not obligated by law
to agree on any proposals that it makes. We are not
required to make any concessions to it."
That statement tells-better than I could say it my-
self-exactly how I feel.
Yazoo and Kuhle, the cases cited by the General Counsel,
make clear, the Board has not retreated from the proposi-
tion that an employer can violate the Act by creating the
impression among employees that bargaining would be fu-
tile and inimical to their interests. However, the cases since
Wilson also make it clear that whether the employer has
utilized the "trouble in River City" theme in a legal or an
illegal manner turns on the totality of its conduct. In Yazoo,
the employer was also guilty of violating Section 8(a)(3). In
both Yazoo and Kuhle, the independent violations of Sec-
tion 8(a)(l) other than the futility-of-bargaining violation
committed by the employers were much more extensive and
serious than those found here. This case, I think, is closer
to Conolon than to Wilson. Therefore, I find Respondent did
not violate Section 8(a)(l) of the Act by threatening to
refuse to bargain with the Charging Party.
There is no mention of a suggestion box in any of
Thompson's speeches, the employees having confused
Thompson's September 1 speech with a letter dated August
24 they received around the same time. The letter read:
We are sure all of our employees are aware of a union
organization drive launched in the plant. We are con-
vinced that having a union would be detrimental to
everyone concerned.
We will be communicating both personally and by let-
ter with truthful and factual information to point up to
you why a union is not appropriate in this organization.
We will insist that a secret ballot election be held, so
that our employees will have a free and uncoerced
opportunity to express their desires in this matter.
It is to your best interest that you wait until you have
an opportunity to study all the facts before you reach
such an important decision concerning your livelihood.
If you have any questions, please drop them in the
question box we have made available. These questions
will be answered on the bulletin board.
The quotation is from Herman Wilson Lumber Company,
149 NLRB 673, enforcement denied 355 F.2d 426 (C.A. 8,
1966), in which the Board, by a 2-1 margin,'found a viola-
tion of the Act and the court, by a similar margin, found
none. The Board has recently had occasion to pass on this
precise language again in The Conolon Corporation, 191
NLRB 254, where the Employer, in the person of one Ash-
by, made one speech, the major part of which was the Wil-
son quotation. The Board, with Member Fanning
concurring in the result, found the speech legal. Member
Fanning distinguished Conolon from Wilson thus:
In my view the impact upon employees of the em-
ployer barrage in Wilson cannot be equated with that
of the single speech made by Ashby.
Here, Respondent 's campaign lies somewhere between the
barrage of Wilson and the single speech of Conolon. As
It will not be necessary for any person to identify him-
self on these questions.
The employees have also confused a "question" box with
a "suggestion" box, i.e., a box arguably designed to solicit
grievances from employees, thus wooing them away from a
union. I find Respondent did not violate Section 8(a)(1) of
the Act by instructing employees to use its newly installed
"suggestion box" rather than support the Charging Party.
2. Dick Kaiser and Gene Silvers
Neither Production Manager Dick Kaiser nor Foreman
Gene Silvers took the stand. Therefore, in each instance, the
following findings are based on the credited testimony of
the General Counsel's witnesses.
The week before the election held on October 26, Kaiser
called the employees together and gave a short talk. When
he was finished, one of the employees asked about a pros-
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pective increase in the minimum wage . Kaiser said he could
make no comment due to the union activities in the plant,
but not to worry about it because the plant might not be
there in February anyway. I find in this remark an implied
threat to close the plant if the employees voted for the
Charging Party and a consequent violation of Section
8(a)(1) of the the Act.
On October 26, before the polls opened, Silvers told Char-
lotte Ann Cessna and Marge Paramenter they should con-
sider voting "no" because a "yes" vote could hurt them and
he hated to see them hurting themselves. He repeated this
message several times in the course of the morning. On
October 27, Silvers told Mrs. Cessna he had "gone in there"
and found out how she voted. Mrs. Cessna said he had not,
because her name had not been on her ballot. Silvers said
she would be walking the picket line while another woman
standing nearby would be coming through to go to work. I
find an implied threat of reprisal for union activities in
Silvers' conduct on October 26, and creation of the impres-
sion of surveillance of the union activities of employees in
his conduct on October 27, both violations of Section
8(a)(1).
On November 16, Mrs. Cessna was anticipating a raise.
As Silvers was bringing paychecks around, he overheard
Mrs. Cessna and a couple of other employees discussing the
subject. As he handed Mrs. Cessna her check, he jokingly
asked the group if they were not aware that all raises were
held up pending settlement of the union mess . Mrs. Cessna's
check contained the raise she was expecting. I find no re-
straint or coercion in this exchange.
There is no evidence to support an allegation of the com-
plaints that Kaiser and Silvers coercively interrogated em-
ployees about their union activities in October.
3. Other allegations
The final two allegations of 8(a)(1) violations are not laid
at the door of any particular supervisor. The first is that
Respondent installed new fans and provided the employees
with new brooms, dustpans, salt tablets, and dispensers to
induce them to give up their union activities. Fans did arrive
and were installed after the outbreak of union activities.
They were a back order from a purchase made by Respond-
ent long before. Brooms and dustpans were bought, just as
they had been provided for employees' use at cleanup time
before union activities began. Salt tablets and a dispenser
were provided after union activities began. The dispenser
was a back order from when Respondent first laid in a
supply of salt tablets in the spring. The tablets replenished
the supply of tablets bought then and consumed in the
interim. It is obvious from Respondent's records of all these
transactions that there was no connection between them
and the union activities of its employees . I find no violation
of Section 8(a)(1) growing out of them.
The second allegation is that Respondent promulgated an
illegal no-solicitation rule by posting a "no-solicitation"
sign on its premises. Sometime between August 17 and Au-
gust 28, Respondent posted two signs on its property out-
side the plant. They said "Private, No Soliciting." The only
other reference to a no-solicitation rule at the Arkansas City
plant is contained in Thompson's speech of August 21.
Number 7 of a list of points Thompson made in stating
"how we feel about the union and the organization of this
company as clearly as I can" was:
No person will be allowed to carry on union organiz-
ing activities on the job. Anybody who does so and who
thereby neglects his own work or interferes with the
work of others will be subject to discharge.
Since this was a borrowed speech, this paragraph cannot
be taken as the expression of a no-solicitation rule already
in effect when employees began engaging in union activi-
ties. I find that Respondent promulgated a no-solicitation
rule to counter the Charging Party's organizing campaign.
While this paragraph suggests a rule properly drafted to
permit employees to engage in solicitation on company
property on nonworking time, the fact that it was borrowed
precludes a finding, absent further explanation by Re-
spondent in the record, that it does, in fact, state the rule
Respondent adopted. Relying, therefore, on the signs post-
ed by Respondent, I find Respondent violated Section
8(a)(1) of the Act by promulgating a rule which forbade
solicitation by employees on company property on non-
working time.
Upon the foregoing findings of fact and upon the entire
record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Premiere Corp. is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Union of Electrical, Radio and Machine
Workers, AFL-CIO-CLC, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By threatening to close its plant if employees voted for
the Charging Party, by threatening them with unspecified
reprisals if they engaged in union activities, by creating the
impression of surveillance of their union activities, and by
promulgating a rule which forbade solicitation by them on
company property on nonworking time, Respondent has
violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The allegations of the complaint in Case 17-CA-5398
that Respondent violated Section 8(a)(1) of the Act by
threatening to turn its plant into a warehouse, by threaten-
ing to refuse to bargain with the Charging Party, by instruct-
ing employees to use its newly installed suggestion box
rather than support the Charging Party, by providing em-
ployees with fans, brooms, dustpans, salt tablets, and dis-
pensers to induce them to give up their union activities, and
by interrogating them about their union activities have not
been sustained.
6. The allegations of the complaint in Case 17-CA-5398
that Respondent violated Section 8(a)(3) and (1) of the Act
by discharging Robin Palmer and Steve Womack on August
16, 1972, and by laying off 18 other employees on August
17, 1972, have not been sustained.
PREMIERE CORP. 393
7. The allegations of the complaints that Respondent
violated Section 8(a)(5) and (1) of the Act by failing and
refusing to recognize and bargain with the Charging Party
on and after August 21, 1972, and by raising wages on two
occasions in early 1973 without notifying or consulting with
the Charging Party have not been sustained.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDERS
Premiere Corp., its officers , agents, successors , and as-
signs, shall:
1. Cease and desist from:
(a) Threatening to close its plant if employees vote for a
union.
(b) Threatening employees with reprisals if they engage
in union activities.
(c) Creating the impression it is engaging in surveillance
of employees' union activities.
(d) Promulgating rules which forbid solicitation by em-
ployees on company property on nonworking time.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and order, and all objections thereto shall be deemed
waived for all purposes
(a) Rescind the no-solicitation rule it promulgated be-
tween August 21 and August 28, 1972.
(b) Post at its plant in Arkansas City, Kansas, copies of
the attached notice marked "Appendix." 4 Copies of said
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by Respondent's author-
ized representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 17, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IIT IS ALSO ORDERED that the complaints be dismissed inso-
far as they allege Respondent violated Section 8(a)(l) of the
Act by threatening to turn its plant into a warehouse, threat-
ening to refuse to bargain with the Charging Party, instruct-
ing employees to use its newly installed suggestion box
rather than support the Charging Party, providing employ-
ees with fans, brooms, dustpans, salt tablets, and dispensers
to induce them to give up their union activities, and interro-
gating employees about their union activities; Section
8(a)(3) and (1) by discharging Robin Palmer and Steve
Womack on August 16, 1972, and by laying off 18 other
employees on August 17, 1972; and Section 8(a)(5) and (1)
by failing and refusing to recognize and bargain with the
Charging Party on and after August 21, 1972, and by raising
wages on two occasions in early 1973 without notifying or
consulting with the Charging Party.
4 In the event that this Order is enforced by a Judgement of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "